MUNEER SAIT Vs. VILANGHAT XAVIER JOSE

JUDGEMENT

(1.) HEARD Sri. Ravi B. Naik, learned Senior Counsel appearing for petitioner and Sri Tomy Sebastian, learned Senior counsel appearing for respondent.

(2.) AN application filed under Order VII Rule 11(a) and (d) read with section 151 of C.P.C. by defendant seeking rejection of plaint on the ground that (i) cause of action alleged in the suit is illusory or in other words there is no cause of action and as such suit is barred and one without cause of action, and; (ii) that it is barred by law namely that when the plaintiff is relying upon agreement of sale and having produced the copy of said agreement by way of secondary evidence trial court could not rely upon such secondary evidence, since 7th defendant had produced the original during the proceedings pending before trial court and as such trial court had determined the duty and penalty payable under the said agreement by plaintiff and for reasons best known said order was recalled and shifted the burden of payment of duty and penalty on 7th defendant which is erroneous and even otherwise when primary evidence is available on record secondary evidence cannot be looked into and as such suit in question was barred under Evidence Act and plaint liable to be rejected. On these grounds application for rejection of plaint was filed. Said application was resisted to by the plaintiff by filing objections and trial court after considering rival contentions has rejected the application by observing that none of the parties namely plaintiff and defendant No. 7 have paid duty and penalty as ordered by it and plaintiff had already tendered secondary evidence and contention now raised by 7th defendant as to whether such secondary evidence is admissible or not is a mixed question of law and fact and only after full fledged trial and hearing the parties to the suit on merits and also after considering the related documents the validity or otherwise of the document dated 12.01.2005 (agreement of sale) and the relevancy of secondary evidence can be examined or to be considered.

(3.) KEEPING said principle laid down by Hon'ble Apex Court in mind when the facts on hand are examined it would clearly indicate that plaintiff in the instant case has filed a suit for specific performance of agreement of sale dated 12.01.2005 and at paragraph 28 cause of action pleaded was as follows: